Relief, or Justice? Concussion Hearing Weighs NFL Players' Conflicting Interests

First, there are thousands of desperate, suffering people—former NFL players, and their families—whose lives have crumbled under the weight of debilitating brain injury. Nearly 15 months ago, they collectively agreed to accept hundreds of millions of NFL dollars to pay their bills, erase their debts and begin to rebuild their lives.

They haven't seen a dime.

Then, there are the thousands of other similar people with largely similar woes, but who may fall on the wrong side of arbitrary lines drawn by the NFL's lawyers and enforced by the NFL's doctors.

They may not see a dime.

Then, there are countless uncountable players set to be frozen out completely. Active, prospective and unborn NFL players, all at risk of a football-triggered descent into illness, infirmity and misery. Not only won't they be eligible for help from this settlement, they'll have virtually no chance to seek it.

Yet with all this at stake, a hearing that could finalize the settlement forever seems to have slipped under our collective football radar.

With everything else that's going on, it's easy to understand why. On the field, the 2014 regular season has been thrilling, full of big upsets, improbable comebacks and crazy blowouts. 

Off the field, superstar tailbacks Adrian Peterson and Ray Rice admitted to committing shocking crimes against family members after upsetting visual evidence hit the Internet; commissioner Rodger Goodell, the league and the NFLPA are still slugging it out over Goodell's disciplinary policies and appeals processes—with potential CBA ramifications.

The DEA conducted surprise raids on NFL locker rooms during Week 11's slate of Sunday games, per Sally Jenkins and Rick Maese of The Washington Post. It dramatically escalated the stakes in an issue that's been simmering for years, per Bleacher Report National NFL Lead Writer Michael Schottey. 

Yet, this is the last opportunity for the agreed-upon settlement to go off the rails. The last hurdle before money flows from the NFL to the battered; the last hurdle before the NFL gets off scot-free.

Don't forget the healthy players and fans who want to know just what the NFL knew about brain trauma, when it knew it and if it actively covered it up. Under the proposed settlement, the NFL will admit no wrongdoing and be cleared of any liability.

If Senior U.S. District Judge Anita Brody hears the objections and approves the settlement anyway, the door will slam shut on years, possibly decades, of alleged league malfeasance.

PBS's Frontline, working with ESPN journalists Steve Fainaru and Mark Fainaru-Wada, uncovered plenty of evidence the NFL not only turned a blind eye to severe brain trauma suffered by scores of former players, but bullied, blackballed, silenced and smeared any scientist, researcher or journalist who dared look into a connection.

Research by Frontline, Fainaru, Fainaru-Wada and Alan Schwarz of The New York Times revealed the NFL's Mild Traumatic Brain Injury Committee started in 1994 with a conclusion—football is safe—then ginned up evidence to support it.

As I wrote at the time, "they prevented many suffering former players from knowing the nature of their torment—and they let another generation of players come through the game without understanding its devastating risks."

The NFL's obstructionism then is paying dividends now.

Bebeto Matthews/Associated Press

As Patrick Hruby of Vice Sports wrote, the settlement's award matrix takes age and time of diagnosis into account. That means players who suffered from CTE symptoms back when the league was stonewalling are owed less money than if they'd been made aware of the issue and diagnosed decades back.

Moreover, as Hruby wrote, there are problems with the criteria the settlement uses for baseline diagnosis, which could lead to thousands of players being wrongfully disqualified from cash awards. Further, the award matrix is set in stone against any future medical technology that can diagnose CTE in living patients—despite former Jets offensive lineman Dave Herman having already been diagnosed with an experimental brain imaging technique.

There's a reason Hruby titled his piece "The NFL Concussion Settlement Is Pure Evil."

Paul D. Anderson of NFLConcussionLitigation.com posted excerpts of 12 filed objections to the settlement, all from class members (former players or their loved ones). They're as gut-wrenching as they are accurate:

"

My objection is to the way in which the offer uses the player’s age at diagnosis to calculate the Monetary Award for that player according to the proposed Monetary Award Grid. This approach actually rewards the NFL for the very actions it is being sued for…No one outside the League knows who at the NFL knew what information about head injury and subsequent neurological damage or in what year it was know and with the settlement agreement, the public may never know these facts…Ironically, in the preliminarily approved agreement, the NFL will again save millions of dollars due directly to those early deceptive tactics and inside knowledge that perhaps goes back to the 1980s or even 1970s….However, if one estimates that just half of the 150 disabled players were formally diagnosed at an older age, over age 54, but like my husband and many other former players, had been undiagnosed disease for years prior, then the NFL’s deceit has the potential to save it many millions of dollars and deny a reasonable award to many who are in dire need.

—Dr. Eleanor Perfetto, widow of former Pittsburgh Steelers and San Diego Chargers guard Ralph Wenzel

"

Per Reuters, about 200 class members stand in opposition to the settlement, between various groups of objectors. During the so-called fairness hearing on Nov. 19, Judge Brody will spend hours hearing from a parade of lawyers, representatives and experts decrying various aspects of the settlement.

Should Judge Brody finalize the deal anyway, the NFL will have scored a massive victory. It'll have successfully sidestepped a messy trial, damning discovery phase and, potentially, many billions' worth of damages and punitive awards.

The "uncapped" awards of the settlement deal—an unlimited pool for total payouts—would only come into play if the entire named class fell into the top award categories. As noted above, the whole rest of the settlement is written to ensure that won't come close to happening.

Matt Rourke/Associated Press

"Within months," lead plaintiff's attorney Craig Seeger told Reuters, the NFL money will start flowing to approved applicants, granting a measure of relief for some families in crying need.

But with so many families in no less need set to be denied or shortchanged, will justice have been served? Is the settlement even ethical? While some finally get the help they deserve, families of players yet to fall victim will be frozen out and the NFL will never have to answer for what it's done.

Then again, it took 10 months just to tweak the settlement agreement reached in August 2013 into its current form. Should Judge Brody decline to finalize the deal in the wake of mass objection, it would all but send the agreement back to the drawing board—and "indefinitely delay" payments to those in need, per Seeger.

These men, and their families, have already experienced so much pain and grief. Brody now faces an impossible task: balancing relief for some of the most grievously suffering against justice for the many wronged by the NFL.

No matter what she decides, the misery of the NFL's concussion crisis will linger.